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Serna v. Webster

United States District Court, D. New Mexico

September 30, 2017

EMMA SERNA d/b/a SERNA & ASSOCIATES CONSTRUCTION CO., LLC, Plaintiff,
v.
MARGETTE WEBSTER; DAVID WEBSTER; STATE OF NEW MEXICO, U.S. Judicial Court Division; CLAYTON CROWLEY; ALEX CHISHOLM; CARL BUTKUS; CINDY MOLINA; ALAN MALOTT; BEATRICE BRICKHOUSE; BOBBY JO WALKER; JAMES O'NEAL; ROBERT BOB SIMON; ESTATE OF PAUL F. BECHT; CARL A. CALVERT; JOEY MOYA; AMY MAYER; GARCIA MADELIENE; ARTHUR PEPIN; MONICA ZAMORA; CHERYL ORTEGA; JOHN DOE #1; PAT MCMURRAY; MARTHA MUTILLO; SALLY GALANTER; NEW MEXICO CONSTRUCTION INDUSTRIES DIVISION; ROBERT “MIKE” UNTHANK; MARTIN ROMERO; AMANDA ROYBAL; NAN NASH and JOHN WELLS, Defendants.

          Emma Serna Plaintiff pro se

          Margette Webster David Webster Albuquerque, New Mexico Defendant pro se

          Hector Balderas Attorneys for Defendants State of New Mexico, Carl Butkus, Cindy Molina, Alan Malott, Beatrice Brickhouse, Bobby Jo Walker, James O'Neal, Joey Moya, Amy Mayer, Garcia Madeliene, Arthur Pepin, Monica Zamora, Cheryl Ortega, and Nan Nash William David Grieg Attorneys for Defendant Clayton Crowley

          Alex Chisolm Defendant pro se

          Terry R. Guebert Robert Gentile Guebert Bruckner, PC Albuquerque, New Mexico Seth Sparks Rodey, Dickason, Sloan, Akin & Robb Albuquerque, New Mexico Attorneys for Defendant Robert Bob Simon

          Estate of Paul F. Becht Albuquerque, New Mexico Defendant pro se

          John P. Burton Charles R. Hughson Rodey, Dickason, Sloan, Akin & Robb Albuquerque, New Mexico Attorneys for Defendant Carl A. Calvert

          Kenneth C. Downes Kenneth C. Downes & Associates, PC Corrales, New Mexico Attorneys for Defendants Martha Murillo, Sally Galanter, New Mexico Construction Industries Division, Robert Unthank, Martin Romero, and Amanda Roybal John Wells Defendant pro se

          MEMORANDUM OPINION AND ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on: (i) the Plaintiff's Motion [sic] District Court's Hearing of January 12, 2017, filed January 12, 2017 (Doc. 11), which the Court construes as a request to refile a lien that the state district court expunged; (ii) the Plaintiff's Request Order for Injunctive Relief from Second Judicial District Court 18 U.S.C. § 1033, 1034, & 1035, filed February 2, 2017 (Doc. 20), which the Court construes as a motion for injunctive relief from the Second Judicial District Court, County of Bernalillo, for the State of New Mexico; (iii) the Plaintiff's Request Order for U.S.C. 18 Dismissal of Expungement of Public Records, filed February 2, 2017 (Doc. 21), which the Court construes as a motion for an order directing the Bernalillo County Clerk to “dismiss the expungement” of a lien; (iv) Defendant Clayton Crowley's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), (b)(4), (b)(5), and (b)(6), filed on February 6, 2017; (v) Plaintiff's Proof to Support Need of Injunction, filed February 8, 2017 (Doc. 24), which the Court construes as a second motion for injunctive relief; (vi) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant Crowley, filed February 9, 2017 (Docs. 26, 27); (vii) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant Margette Webster, filed February 9, 2017 (Doc. 28); (viii) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant David Webster, filed February 9, 2017 (Doc. 29); (ix) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant Alex Chisholm, filed February 9, 2017 (Doc. 30); (x) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant Carl Calvert, filed February 9, 2017 (Doc. 31); (xi) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant Robert Simon, filed February 9, 2017 (Doc. 32); (xii) Defendants Judge Monica Zamora, Judge Beatrice Brickhouse, Judge Carl Butkus, Judge Alan Malott, Joey Moya, Amy Mayer, Madeline Garcia, Lynette Rodriguez[1], Arthur Pepin, Cheryl Ortega, James Noel, Cindy Molina, Bobby Jo Walker, and the State of New Mexico (“Judicial Defendants”)'s Judicial Defendants' Motion to Dismiss Complaint, filed February 9, 2017 (Doc. 33); (xiii) Defendant Calvert's Motion of Carl A. Calvert to Dismiss Complaint, filed February 9, 2017 (Doc. 34); (xiv) Defendants New Mexico Construction Industries Division (“CID”), Robert Unthank, Sally Galanter, Martha Murillo, Pat McMurray, Martin Romero, and Amanda Roybal (“CID Defendants”)'s Joint Motion to Dismiss, filed February 10, 2017 (Doc. 36); (xv) Defendant Simon's Motion for More Definitive Statement, filed February 10, 2017 (Doc. 38); (xvi) Defendant Judge Nan Nash's Motion to Dismiss Complaint, filed February 10, 2017 (Doc. 40)[2]; (xvii) the Plaintiff's Motion to Have the Honorable Browning Hear All Dismissal Briefs, filed February 21, 2017 (Doc. 53), which the Court construes to be a motion for hearing; (xviii) the Plaintiff's Supplemental to Judicial Defendants Dismissal Answer, filed February 23, 2017 (Doc. 58), which the Court construes to be the Plaintiff's motion for sanctions against counsel for the Judicial Defendants for failing to disclose his employment status; (xix) the Plaintiff's Objection to Dismissal of Complaint Against C.I.D. Defendants, filed on February 24, 2017 (Doc. 61); (xx) Plaintiff's Motion for Entry of Judgment on Default Judgments as to all Defendants, filed March 1, 2017 (Doc. 66); (xxi) the Plaintiff's Proof of Service to Defaulted Defendants, filed March 9, 2017 (Doc. 77); (xxii) the Plaintiff's Reply in Further Support to Hear Complaint, filed March 14, 2017 (Doc. 83); (xxii) the Judicial Defendants' Motion to Strike Plaintiff's “Reply in Further Support to Hear Complaint, ” filed March 14, 2017 (Doc. 84); (xxiii) the Plaintiff's Completion of Plaintiff's Briefings and Request Entry of “Reply in Further Support to Hear Complaint, ” filed March 21, 2017 (Doc. 90); (xxiv) the Plaintiff's Attorney for Judicial Defendants Made a False Statement to the Court, filed March 21, 2017 (Doc. 91), which the Court construes to be Plaintiff's second motion for sanctions against counsel for the Judicial Defendants (Doc. 91); (xxv) the Plaintiff's Waiver of Service of Summons Has Been Mailed to the Websters, filed on March 23, 2017 (Doc. 92);(xxvi) the Plaintiff's Defendant Nash in Violation of Jurisdiction and Authority and RICO Act, filed March 23, 2017 (Doc. 94), which the Court construes as the Plaintiff's third motion for injunctive relief; (xxvii) the Plaintiff's Request: Order for Dismissal of Expungement, of Mechanic's Lien, Filed by State District Court at County Clerks Office, filed April 3, 2017 (Doc. 96); (xxviii) the Plaintiff's Request Emergency Temporary Injunction on Second Judicial District State Court, Albuquerque, filed April 6, 2017 (Doc. 98); (xxix) the Judicial Defendants' Motion to Impose Filing Restrictions on Plaintiff, filed April 6, 2017 (Doc. 99); (xxx) the Plaintiff's Complaint to Judge Browning: Judge Nash in Noncompliance of Lawsuit in Federal Court and Holding an Arbitration Hearing to Change a 2 Yr. Old Award, filed April 17, 2017 (Doc. 104), which the Court construes as the Plaintiff's fourth motion for injunctive relief; (xxxi) the Plaintiff's Judge Nash's Ruling in State District Court Without Jurisdiction and Authority, filed April 19, 2017 (Doc. 105), which the Court construes as another motion for injunctive relief; (xxxii) the Plaintiff's Motion for Entry of Default and Default Judgment as to Defendant John Wells, filed May 3, 2017 (Doc. 115); (xxxiii) the Plaintiff's motions to amend complaint, filed January 10, February 9, February 15, February 24, March 17, and March 23, 2017 (Docs. 7, 8, 25, 47, 61, 87, 93, 94); (xxxiv) the Plaintiff's Second Proposed Findings and Recommended Disposition, filed May 4, 2017 (Doc. 118)(“Second PFRD”), which addresses all of the above motions (Doc. 118); (xxxv) the Defendants David and Margette Webster's Motion to Dismiss Complaint, filed May 8, 2017 (Doc. 120); (xxxvi) the Plaintiff's Request to the Honorable Judge Browning: Temporary Restraining Order Filed on State District Court and Evidentiary Hearing and Recusal of the Judge Lynch for Fraud Upon the Court, filed May 8, 2017 (Doc. 121); (xxxvii) the Plaintiff's Request to Judge Browning: Emergency Order to Cease and Desist Collections on False State District Court Award, ” filed on May 11, 2017, which the Court construes as another motion for injunctive relief (Doc. 123); (xxxviii) the Plaintiff's Objection to Dismissal of Complaint, filed May 12, 2017 (Doc. 125), which the Court construes as a motion for discovery and for sanctions; (xxxix) the Plaintiff's Emergency Request from Judge Browning: Order to Bernalillo County Sheriff's Department to Return Serna's Funds, filed May 12, 2017 (Doc. 126), which the Court construes as a motion for injunctive relief (Doc. 126); (xl) the Plaintiff's Relief From Default Judgment Under Rule 55 and 60(b) as per Defendant Wells, filed May 15, 2017 (Doc. 127); (xli) the Plaintiff's Relief from Default Judgment Under Rule 55 and 60(b) as per Defendant Simon, filed May 15, 2017 (Doc. 128); (xlii) the Plaintiff's Relief from Default Judgment Under Rule 55 and 60(b) as to Defendant Chisholm, filed May 15, 2017 (Doc. 129); the Plaintiff's Relief from Default Judgment Under Rule 55 and 60(b) as to Defendant Webster, filed May 15, 2017 (Doc. 130); (xliii) the Plaintiff's for default judgment as to Margette Webster, filed on May 15, 2017 (Doc. 131); Relief from Default Judgment Under Rule 55 and 60(b) as to Defendant Crowley, filed May 15, 2017 (Doc. 132); (xliv) the Plaintiff's Corrections to Defendant's Codes per the Courts Entry of May 04, 2017, filed May 30, 2017, which the Court construes as a motion to amend (Doc. 134); (xlv) the Plaintiff's Objections to the Second Proposed Findings and Recommended Disposition and Grant Judgment in Favor of the Plaintiff on the Findings, filed May 30, 2017 (Doc. 135)(“Objections”); (xlvi) the Plaintiff's Objections and Answers to Proposed Findings and Recommendations and Motion to Withdraw the Limited Liability Company Until Counsel is Procured, filed June 13, 2017 (Doc. 137); (xlvii) the Plaintiff's Request for this Objection as Timely on Objection to Dismissal of Defendant Chisholm and Accept His Default Judgment, filed June 15, 2017 (Doc. 138), which the Court construes as another motion for default judgment; (xlviii) Defendant Simon's Motion to Strike and Dismiss Plaintiff's Compliant Pursuant to Fed.R.Civ.P. 12 (e), filed July 24, 2017(Doc. 139); (xlix) the Plaintiff's Request Cancellation of Defendant Simon's Unscrupulous Motion to Strike Complaint, filed July 27, 2017 (Doc. 140); (1) the Plaintiff's Motion for Leave to Amend Complaint and Add Additional Parties Plus Relief and Memorandum of Law in Support, filed July 31, 2017 (Doc. 141); (li) the Plaintiff's Defendant Webster in Violation of Rule 5 Serving Pleadings and Other Papers on All Parties, filed August 10, 2017 (Doc. 144), which the Court construes as another motion for injunctive relief; (lii) the Plaintiff's Objection to Defendant Simon's Motion to Strike and Dismiss Plaintiff's Complaint, filed August 11, 2017 (Doc. 145), which the Court construes as a motion for sanctions; and (liii) the Plaintiff's Addendum Request: Office of the Clerks to Mail Defendant's [sic] Websters Copies of Court Pleadings Due to “Threats” on Plaintiff, filed August 18, 2017 (Doc. 146), which the Court construes as another motion for injunctive relief. Because the Court agrees with the conclusion of the Honorable William P. Lynch, United States Magistrate Judge for the District of New Mexico, the Court will overrule the Plaintiff's Objections and adopt the Second PFRD; allow Serna ten days to file an amended complaint as to Defendants Alex Chisholm, the Estate of Paul Becht, and Robert Simon; deny the Motion for Hearing; grant the Defendants David Webster and Margette Webster's Motion to Dismiss; deny Serna's seven Motions for Injunctive Relief and for Sanctions (Docs. 121, 123, 125, 126, 140, 144, 145, 146); deny Serna's eight Motions for Default Judgment; deny Serna's Motions to Amend; dismiss, at Serna's request, Defendants Cindy Molina, Lynette Rodriguez, Madeline Garcia, Sally Galanter, and Ari Biernoff; deny Robert Simon's Motion to Strike and Dismiss; and order Serna to show cause, in writing, within ten days from the date of entry of this Order, why filing restrictions should not be imposed against her.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Second PFRD thoroughly lays out factual and procedural history. The Court will not repeat the background.

         LAW REGARDING PLEADING REQUIREMENTS

         The decision to strike a pleading or to dismiss an action without prejudice for failure to comply with Rule 8 of the Federal Rules of Civil Procedure is within the district court's sound discretion. See Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993); Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). To state a claim for relief, rule 8(a) requires a plaintiff's complaint to contain “(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, . . . (2) a short and plain statement of the claim showing that [she] is entitled to relief, and (3) a demand for judgment for the relief [he or she] seeks.” Fed.R.Civ.P. 8(a). Although the Court is to construe pro se pleadings liberally, a pro se plaintiff must follow the rules of federal and appellate procedure. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

         A pro se complaint is subject to dismissal under rule 8(a) if it is “incomprehensible.” Olguin v. Atherton, 215 F.3d 1337 (10th Cir. 2000); Carpenter v. Williams, 86 F.3d 1015, 1016 (10th Cir. 1996). Rule 8(a)'s purpose is to require plaintiffs to state their claims intelligibly so as to give fair notice of the claims to opposing parties and the court. See Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007); Monument Builders of Greater Kansas City, Inc. v. Am. Cemetery Ass'n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). Imprecise pleadings undermine the complaint's utility and violate rule 8's purpose. See Know v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952). Rambling and incomprehensible filings that bury material allegations in “a morass of irrelevancies” do not meet rule 8(a)'s pleading requirement of a “short and plain statement.” Mann v. Boatright, 477 F.3d at 1148. See Ausherman v. stump, 643 F.2d 715, 716 (10th Cir. 1981)(describing a sixty-three-page complaint as “prolix” and concluding that it violated rule 8(a)'s “short and plain” statement requirement).

         Moreover, courts should deny leave to amend when it appears that the plaintiff is attempting “to make the complaint ‘a moving target[.]'” Minter v. Prime Equipment Co., 451 F.3d 1196, 1206 (10th Cir. 2006)(quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1988)). It is unreasonable to expect the court or the defendants continually to have to adapt as the plaintiff develops new theories or locates new defendants. There comes a point when even a pro se plaintiff has had sufficient time to investigate and to properly frame his or her claims against specific defendants. See Minter v. Prime Equipment Co., 451 F.3d at 1206.

         LAW REGARDING MOTIONS TO AMEND

         “While Rule 15 governs amendments to pleadings generally, Rule 16 of the Federal Rules of Civil Procedure governs amendments to scheduling orders.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009)(citing Fed.R.Civ.P. 16(b)). When a court has not entered a scheduling order in a particular case, rule 15 governs amendments to the plaintiff's complaint. See Fed.R.Civ.P. 15. When a scheduling order governs the case's pace, however, amending the complaint after the deadline for such amendments implicitly requires an amendment to the scheduling order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v. Billings, 568 F.3d at 1231.

         Rule 15(a) of the Federal Rules of Civil Procedure provides:

         (1) Amending as a Matter of Course. A party may amend it pleading once as a matter of course within:

         (A) 21 days after serving it, or

         (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under rule 12(b), (e), or (f), whichever is earlier.

         (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave where justice so requires.

         Fed. R. Civ. P. 15(a)(bold and italics in original). Further, the local rules provide that, with respect to motions to amend a pleading, “[a] proposed amendment to a pleading must accompany the motion to amend.” D.N.M.LR-Civ. 15.1.

         Under rule 15(a), the court should freely grant leave to amend a pleading where justice so requires. See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M. 2010)(Browning, J.); Youell v. Russell, No. CIV 04-1396 JB/WDS, 2007 WL 709041, at *1-2 (D.N.M. Feb. 14, 2007)(Browning, J.); Burleson v. ENMR-Plateau Tele. Coop., No. CIV 05-0073 JB/KBM, 2005 WL 3664299, at *1-2 (D.N.M. Sept. 23, 2005)(Browning, J.). The Supreme Court has stated that, in the absence of an apparent reason such as “undue delay, bad faith or dilatory motive . . . [, ] repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc., ” leave to amend should be freely given. Fomen v. Davis, 371 U.S. 178, 182 (1962). See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80.

         A court should deny leave to amend under rule 15(a) where the proposed “amendment would be futile.” Jefferson Cty. Sch. Dist. v. Moody's Investor's Serv., 175 F.3d 848, 859 (10th Cir. 1999). See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80. An amendment is “futile” if the pleading “as amended, would be subject to dismissal.” In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80 (citing TV Commc'ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)). A court may also deny leave to amend “upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, [or] failure to cure deficiencies by amendments previously allowed.” In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579 (quoting Frank v. U.S. W., Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993)). See Youell v. Russell, 2007 WL 709041, at *2-3; Lymon v. Aramark Corp., No. CIV 08-0386 JB/DJS, 2009 WL 1299842 (D.N.M. Feb. 4, 2009)(Browning, J.). The Tenth Circuit has also noted:

It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend, see Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990); First City Bank v. Air Capitol Aircraft Sales, 820 F.2d 1127, 1133 (10th Cir. 1987), especially when the party filing the motion has no adequate explanation for the delay, Woolsey, 934 F.2d at 1462. Furthermore, “[w]here the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.” Las Vegas Ice, 893 F.2d at 1185.

Frank v. U.S. W., Inc., 3 F.3d at 1365-66. The longer the delay, “the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.” Minter v. Prime Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)). Undue delay occurs where the plaintiff's amendments “make the complaint ‘a moving target.'” Minter v. Prime Equip. Co., 451 F.3d at 1206 (quoting Viernow v. Euripides Dev. Corp., 157 F.3d at 799-800). “[P]rejudice to the opposing party need not also be shown.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185. “Where the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185 (quoting State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984)). Along the same vein, the court will deny amendment if the party learned of the facts upon which its proposed amendment is based and nevertheless unreasonably delayed in moving to amend its complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)(noting motion to amend filed “was not based on new evidence unavailable at the time of the original filing”).

         Refusing leave to amend is generally justified only upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. See Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)(citing Foman v. Davis, 371 U.S. at 182). Again, the matter is left to the court's discretion. Frank v. U.S. W., Inc., 3 F.3d at 1365-66. See Duncan v. Manager, Dep't of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)(quoting Frank v. U.S. West, Inc., 3 F.3d at 1365-66, and stating that resolving the issue whether to allow a plaintiff to file a supplement to his complaint is “well within the discretion of the district court”). “The . . . Tenth Circuit has emphasized that ‘[t]he purpose of [rule 15(a) ] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'” B.T. ex rel. G.T. v. Santa Fe Pub. Schs., 2007 WL 1306814, at *2 (D.N.M. 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)). “Specifically, the . . . Tenth Circuit has determined that district courts should grant leave to amend when doing so would yield a meritorious claim.” Burleson v. ENMR-Plateau Tel. Co-op., 2005 WL 3664299 at *2 (D.N.M. 2005)(Browning, J.)(citing Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001)).

         LAW REGARDING ELEVENTH AMENDMENT IMMUNITY

         The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Supreme Court has construed Eleventh Amendment immunity to prohibit federal courts from entertaining suits against states brought by their own citizens or citizens of another state without their consent. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). State agencies and state officials are likewise provided immunity as “an arm of the state.” Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280-81 (1977).

         Exceptions to a state's Eleventh Amendment immunity are few. See, e.g., Ex parte Young, 209 U.S. 123, 159-60 (1908)(“If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”). A state may, however, voluntarily waive its immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). Congress may also abrogate Eleventh Amendment immunity pursuant to Section 5 of the Fourteenth Amendment to the Constitution of the United States, where the statute explicitly manifests Congress' intent to do so. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Congress did not, however, abrogate Eleventh Amendment immunity when enacting 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 340 (1979). Consequently, Eleventh Amendment immunity extends to defendants under that statute, and claims against the state pursuant to § 1983 in the federal courts are barred as a matter of law.

         Although not properly characterized as an exception to a state's Eleventh Amendment immunity, the doctrine that the Supreme Court announced in Ex parte Young, 209 U.S. at 128, allows for suits against state officials under certain circumstances. See Elephant Butte Irrigation Dist. of N.M. v. Dep't of the Interior, 160 F.3d 602, 607-08 (10th Cir. 1998)(“The Ex parte Young doctrine is not actually an exception to Eleventh Amendment state immunity because it applies only when the lawsuit involves an action against state officials, not against the state.”). In Ex parte Young, the Supreme Court held that the Eleventh Amendment bar generally does not apply in federal court to state officials defending against suit which seeks only prospective relief from violations of federal law. See Ex parte Young, 209 U.S. at 28. The Ex parte Young doctrine allows suit to proceed against defendant state officials if the following requirements are met: (i) the plaintiffs are suing state officials rather the state itself; (ii) the plaintiffs have alleged a non-frivolous violation of federal law; (iii) the plaintiffs seek prospective equitable relief rather than retroactive monetary relief from the state treasury; and (iv) the suit does not implicate special sovereignty interests. See Elephant Butte Irrigation Dist. of N.M. v. Dep't of the Interior, 160 F.3d at 609.

         LAW REGARDING JUDICIAL IMMUNITY

         “[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). That same immunity continues even if the judge's “exercise of authority is flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. at 359.

         The Supreme Court has emphasized that a judge's immunity from § 1983 liability “is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial acts, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991)(citations omitted). The Supreme Court has also held that absolute judicial immunity was not affected or abolished “by § 1983, which makes liable ‘every person' who under color of law deprives another person of his civil rights.” Pierson v. Ray, 386 U.S. 547, 554 (1967), overruled in part on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).

         The Tenth Circuit has also recognized that “officials in administrative hearings can claim the absolute immunity that flows to judicial officers if they are acting in a quasi-judicial fashion.” Guttman v. Khalsa, 446 F.3d 1027, 1033 (2006)(citing Butz v. Economou, 438 U.S. at 514, 98 S.Ct. 2894). For an official at an administrative hearing to enjoy absolute immunity, “(a) the officials' functions must be similar to those involved in the judicial process, (b) the officials' actions must be likely to result in damages lawsuits by disappointed parties, and (c) there must exist sufficient safeguards in the regulatory framework to control unconstitutional conduct.” Guttman v. Khalsa, 446 F.3d at 1033 (quoting Horwitz v. State Bd. of Med. Examr's, 822 F.2d 1508, 1513 (10th Cir. 1987)(“Horwitz”)(internal quotation marks omitted)).

         In Guttman v. Khalsa, a doctor who suffered from depression and post-traumatic stress disorder appeared before the Impaired Physicians Committee of the New Mexico Board of Medical Examiners to respond to complaints about his professional conduct. See 446 F.3d at 1030. The Committee in Guttman v. Khalsa issued a “Notice of Contemplated Action and an Order of Summary Suspension” of the doctor's medical license based on alleged mental illness and lying to the Committee. 446 F.3d at 1030. The New Mexico Board of Medical Examiners then held a hearing, during which one of the defendants acted as Administrative Prosecutor. See 446 F.3d at 1030. The New Mexico Board of Medical Examiners in Guttman v. Khalsa revoked the doctor's medical license pursuant to its statutory authority to do so. See 446 F.3d at 1030.

         The doctor in Guttman v. Khalsa appealed the decision to the Seventh Judicial District of New Mexico. See 446 F.3d at 1030. The Seventh Judicial District of New Mexico denied the appeal, and the doctor then appealed to the Court of Appeals of New Mexico. See 446 F.3d at 1030. After the Court of Appeals of New Mexico affirmed, the doctor filed a petition for certiorari with the Supreme Court of New Mexico. See 446 F.3d at 1030. Before the Supreme Court of New Mexico could act on the petition, the doctor filed a lawsuit in federal court, alleging, among other things, violations of his constitutional rights. See 446 F.3d at 1030.

         The Tenth Circuit concluded that the Administrative Prosecutor and the individual who presided over the three-day hearing in front of the New Mexico Board of Medical Examiners enjoyed absolute immunity. See Guttman v. Khalsa, 446 F.3d at 1032. The basis for the hearing officer's immunity in Guttman v. Khalsa was that he had served a quasi-judicial function. See 446 F.3d at 1032.

         The Tenth Circuit in Guttman v. Khalsa also relied on Horwitz. See 822 F.2d at 1508. In Horwitz, the Tenth Circuit concluded that members of the State Board of Medical Examiners for the State of Colorado enjoyed absolute immunity for actions it took in filing a formal complaint against a doctor, and in temporarily suspending his right to practice medicine pending investigations and hearings. See 822 F.2d at 1510, 1515. The Tenth Circuit reasoned that the defendant Board members were performing adjudicatory and prosecutorial functions. See 822 F.2d at 1515. The Tenth Circuit also noted:

There exists a strong need to insure that individual Board members perform their functions for the public good without harassment or intimidation. There exist adequate due process safeguards under Colorado law to protect against unconstitutional conduct without reliance upon private damages lawsuits. It is important to insulate Board members from political influences in meeting their adjudicatory responsibilities in the adversarial setting involving licensure to practice medicine. Public policy requires that officials serving in such capacities be exempt from personal liability.

         822 F.2d at 1515. Finally, the Tenth Circuit noted the Board members' functions, observing that Board members

serve in the prosecutorial role in that they, among other things, initiate complaints, start hearings, make investigations, take evidence, and issue subpoenas. They also serve in the adjudicative role, as judges. Thus, the Board duties are “functionally comparable” to a court of law. And we are reminded that, with respect to immunity, we must include all acts of the official performing statutory duties as having “[m]ore or less connection with the general matters committed by law” to his station.

         822 F.2d at 1515.

         Although certain officers enjoy immunity from suit for acts taken in a quasi-judicial setting, the Supreme Court has held that court reporters do not enjoy such immunity. Rejecting a court reporter's assertion of absolute immunity, the Supreme Court stated: “We are also unpersuaded by the contention that our functional approach to immunity . . . requires that absolute immunity be extended to court reporters because they are part of the judicial function.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993).Rather, in the Supreme Court's view,

[t]he doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability. Accordingly, the “touchstone” for the doctrine's applicability has been “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” [Burns v. Reed, ] 500 U.S. [478, ] 500 [ (1991) ](Scalia, J., concurring in judgment in part and dissenting in part). When judicial immunity is extended to officials other than judges, it is because their judgments are “functional[ly] comparab[le]” to those of judges -- that is, because they, too, “exercise a discretionary judgment” as a part of their function. Imbler v. Pachtman, 424 U.S. [409], 423, n.20, 96 S.Ct. 984, 47 L.Ed.2d 128 [ (1976) ].

Antoine v. Byers & Anderson, Inc., 508 U.S. at 435-36 (footnote omitted) (final two alterations in original).

         In light of this understanding of judicial immunity, the Supreme Court concluded that the function that court reporters perform is not one that would lead to a grant of immunity. See 508 U.S. at 436. The Supreme Court reasoned that court reporters “are afforded no discretion” in carrying out their duty and that they are “not absolutely immune because their duties are ministerial, not discretionary in nature.” 508 U.S. at 436 (citations omitted) (internal quotation marks omitted).

         The Court has also drawn distinctions between when a person is acting in a judicial role, such that they are entitled to quasi-judicial immunity, and when a person in a quasi-judicial setting plays a merely ministerial role. See Duprey v. Twelfth Judicial Dist. Court, 760 F.Supp.2d 1180, 1204 (D.N.M. 2009)(Browning, J.). In Duprey v. Twelfth Judicial District Court, the Court concluded that the state defendant who acted as chairperson of the judicial grievance board was entitled to absolute immunity, because his function was similar to that of an administrative law judge in a quasi-judicial setting. See 760 F.Supp.2d at 1204. The Court stated that the director of human resources for the New Mexico Administrative Office of the Courts was not entitled to absolute immunity, because her role was ministerial and mechanical. See 760 F.Supp.2d at 1204. In analyzing each defendant's function, the Court focused on participation in the deliberative process and the exercise of independent judgment. See 760 F.Supp.2d at 1205. The Court determined that, because the human resources director played a ministerial role and did not act at a judge's direction, she was not entitled to judicial immunity. See 760 F.Supp.2d at 1208 (“An individual whose job at a judicial proceeding is to run a tape recorder is not one who needs to be able to act according to her own convictions.”). See also Braverman v. New Mexico, No. 11-0829, 2011 WL 6013587, at *20 (D.N.M. Oct. 19, 2011)(Browning, J.) (concluding that judicial immunity probably protects a state judge and special master from suit when denying a motion for a temporary restraining order).

         LAW REGARDING ARBITRAL IMMUNITY

         “The doctrine [of arbitral immunity] rest on the notion that arbitrators acting within their quasi-judicial duties are the functional equivalent of judges and, as such, should be afforded similar protection.” Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d 1155, 1158 (10th Cir. 2007)(citing Olson v. Nat'l Ass'n of Sec. Dealers, 85 F.3d 381, 382 (8th Cir. 1996)). “[A]rbitral immunity has been held to be ‘essential to protect the decision-makers from undue influence and protect the decision-making process from reprisals by dissatisfied litigants.'” Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1158 (quoting New England Cleaning Servs., Inc. v. Am. Arbitration Ass'n, 199 F.3d 542, 545 (1st Cir. 1999)).

         Every Court of Appeals to have considered the issue recognizes the doctrine of arbitral immunity. See, e.g., Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1159-60; Hutchins v. Am. Arbitration Ass'n, 108 Fed.Appx. 647, 648 (1st Cir. 2004); Austern v. Chicago Bd. of Options Exch., Inc., 898 F.2d 882 (2d Cir. 1990); Cahn v. Int'l Ladies Garment Union, 311 F.2d 113 (3d Cir. 1962); Shrader v. NASD, Inc., 54 F.3d 744 (4th Cir. 1995); Hawkins v. NASD, Inc., 149 F.3d 330 (5th Cir. 1998); Corey v. New York Stock Exch., Inc., 691 F.2d 1205 (6th Cir. 1982); Int'l Med. Group, Inc. v. Am. Arbitration Ass'n, 312 F.3d 833 (7th Cir. 2002); Honn v. NASD, 182 F.3d 1014 (8th Cir. 1999); Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579 (9th Cir. 1987). Indeed, even the Supreme Court supports the doctrine of arbitral immunity. See Butz v. Economou, 438 U.S. 478, 508-11 (1978)(holding that there are certain persons whose special functions require a full exemption from liability for acts committed within the scope of their duties). “These courts uniformly hold that arbitration forums and sponsors, like courts of law, are immune from liability for actions taken in connection with administering arbitration.” Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1159.

         While arbitral immunity does not protect arbitrators from all claims asserted against them, the key “is whether the claim at issue arises out of a decisional act.” Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith, 477 F.3d at 1159 (citing Maureen A. Weston, Reexamining Arbitral Immunity in an Age of Mandatory and Professional Arbitration, 88 Min. L. Rev. 449, 505 (Feb. 2004)). When a claim seeks to challenge the “decisional act of an arbitrator, ” the doctrine of arbitral immunity applies. Weston, supra, at 505.

         LAW REGARDING QUALIFIED IMMUNITY

         Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28, 2009) (Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S. 478, 504 (1978). “The qualified immunity analysis is the same whether the claims are brought under Bivens[3] or pursuant to the post-Civil War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 . . . (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties, ” Anderson v. Creighton, 483 U.S. 635, 638 . . . (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818 . . . (1982). That means a court can often avoid ruling on the plaintiff's claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Green, 563 U.S. 692, 705 (2011).

         Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).

         Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs” and operates to protect officers from the law's sometimes “hazy border[s].” Saucier v. Katz, 533 U.S. 194, 205 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).

         1. Procedural Approach to Qualified Immunity.

         In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory, the protocol Saucier v. Katz outlined -- by which a court first decides if the defendant's actions violated the Constitution, and then the court determines if the right violated was clearly established -- will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241. In rejecting the prior mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right, ” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237. The Supreme Court also recognized that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted) (internal quotation marks omitted). See Reichle v. Howards, 566 U.S. 658 (2012)(affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior case law “comports with our usual reluctance to decide constitutional questions unnecessarily”). Once the plaintiff establishes an inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).

         The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so fact bound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage, ” and “the precise factual basis for the . . . claim . . . may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking, ” because of inadequate briefing; (vi) discussing both elements risks “bad decisionmaking, ” because the court is firmly convinced that the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir. 2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42)(internal quotation marks omitted). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 563 U.S. at 706 (2011). See Kerns v. Bader, 663 F.3d at 1181. “Courts should think carefully before expending ‘scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.'” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37). See Camreta v. Greene, 131 S.Ct. at 2032 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182.

         2. Clearly Established Rights in the Qualified Immunity Analysis.

         To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep.Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable' and ‘unquestioned.'” Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir. 1983)).

         “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question . . . unlawful.” Anderson v. Creighton, 483 U.S. at 640. “In determining whether the right was ‘clearly established, ' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001)(alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

         The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule' is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 563 U.S. at 742. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” on the application of law to facts and operates to protect officers from the law's sometimes “hazy border[s].” Saucier v. Katz, 533 U.S. at 205.

         The Tenth Circuit held in Kerns v. Bader -- an opinion that the then-Judge, now Justice, Gorsuch wrote -- that, although “a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law, ” the law is not clearly established where “a distinction might make a constitutional difference.” 663 F.3d 1173, 1188 (2011)(emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn't whether we all have some general privacy interest in our home, ” but “whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.”).

         “[W]hen an officer's violation . . . is particularly clear . . ., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed.Heights, 509 F.3d at 1284. Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning. . . .” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

         In Rivera v. Bates, No. CIV 12-0473 JB/RHS, 2014 WL 3421050 (D.N.M. June 21, 2014)(Browning, J.), the Court used the Kerns v. Bader qualified-immunity framework to determine if it was clearly established that arresting a suspect in his underwear and failing to retrieve his clothing to cover him while transporting him from his house to a patrol car makes the arrest unreasonable. See 2014 WL 3421050, at *54. The Court stated:

Even if the Court could, on the record before it, conclude, as a matter of law, that the manner in which Hernandez effectuated the arrest was [un]reasonable, the Court finds that the law was not clearly established such that a reasonable officer in Hernandez' position would have recognized that he needed to retrieve clothing for S. Rivera rather than escort him directly to the police vehicle. As the Tenth Circuit has emphasized, although “a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law, ” the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader, 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn't whether we all have some general privacy interest in our home, ” but “whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Here, S. Rivera has relied on Cortez v. McCauley[, 478 F.3d 1108 (10th Cir. 2007)] to establish that his clearly established rights were violated, but the Tenth Circuit in that case stated that it had “little difficulty concluding that a small amount of force, like grabbing Rick Cortez and placing him in the patrol car, is permissible in effecting an arrest under the Fourth Amendment.” 478 F.3d at 1128. The Tenth Circuit only made one comment regarding Cortez' clothing during the arrest:
Although the dignity aspects of this arrest are troubling, specifically hauling Rick Cortez (clad only in his shorts) into the patrol car in the middle of the night without any explanation, the police were investigating a serious felony and claimed a need for quick action to separate the accused from any other children that might be in the home.
478 F.3d 1108, 1128-29 (10th Cir. 2007). The Tenth Circuit did not explain what would have to be different about the “dignity aspects” for the arrest to violate the Fourth Amendment. More importantly, the Court emphasizes that Hernandez did not participate in any of the alleged wrongdoing inside S. Rivera's house, nor did he refuse to allow S. Rivera to get dressed; instead, Hernandez was involved in the arrest only after S. Rivera was outside the house. S. Rivera has not pointed to, nor has the Court been able to identify, any cases that demand that an officer delay taking the arrestee to a police vehicle so the officer can enter the arrestee's home to search for clothing or otherwise find some covering for an arrestee on the way to the police vehicle. The Court will thus grant the MSJ on S. Rivera's excessive and unreasonable force claim against Hernandez.

Rivera v. Bates, 2014 WL 3421050, at *54 (emphasis in original).

         LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)(McKay, J.)(“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”)(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)(Henry, J.)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. at 675 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casaus, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011)(Browning, J.) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 689 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998)(Seymour, J.).

         Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights, ” thus establishing the “requisite causal connection” between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d at 1046. The Tenth Circuit has explained that § 1983 liability should be “‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. at 663). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles -- including principles of causation. . . .” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M. 2009)(Browning, J.).

         The Tenth Circuit has found liability for defendants who proximately cause an injury alleged under § 1983, explaining that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant], ” so long as there was not a superseding-intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately' or ‘legally' caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic' or but-for sense by the illegal entry.” 72 F.3d 400. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep't of Prob., 115 F.3d 1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 . . . (1989).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:

Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect's conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See id. § 440.

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400)(citations in original). Additionally, “[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 303-04(5th ed.1984)). If

the reasonable foreseeability of an intervening act's occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).

         LAW REGARDING RACKETEERING CLAIMS

         Both federal and state laws prohibit a variety of racketeering activities. New Mexico's racketeering laws are similar to the federal RICO statute, as the latter provided the model for the former. Both federal and state law provide for civil remedies for private individuals and organizations that racketeering activities harm.

         1. The Federal RICO Act.

         The federal RICO statute, 18 U.S.C. § 1962, proscribes a wide variety of conduct. Specifically, RICO provides:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. . . .

18 U.S.C. § 1962(a). RICO further provides:

(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

18 U.S.C. § 1962(b)-(d). “Racketeering activity” and “pattern of racketeering activity” are the key concepts underlying RICO, and the statute gives the two phrases precise meanings. More simply, a violation of any subsection of 18 U.S.C. § 1962 requires evidence that the defendant participated in a pattern of racketeering activity. See Bancoklahoma Mortgage Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1100 (10th Cir. 1999).

Section 1962(1) defines “racketeering activity” as
(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), . . . section 1941 (relating to mail fraud, ...

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